HomeMy WebLinkAbout2021-03-16; City Council; Resolution 2021-055RESOLUTION NO. 2021-055
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, DENYING A COASTAL DEVELOPMENT PERMIT AND
VARIANCE FOR AN UNPERMITTED RETAINING WALL SYSTEM THAT
EXCEEDS STANDARDS ON A MANUFACTURED UPHILL PERIMETER SLOPE
WITH A GRADIENT GREATER THAN 40 PERCENT AND AN ELEVATION
DIFFERENTIAL OF GREATER THAN FIFTEEN FEET LOCATED AT 939
BEGONIA COURT WITHIN THE MELLO II SEGMENT OF THE CITY'S LOCAL
COSTAL PROGRAM AND LOCAL FACILITIES MANAGEMENT ZONE 4
CASE NAME: BEGONIA COURT RETAINING WALL
CASE NO.: CDP 2020-0026/V 2020-0004
WHEREAS, the City Council of the City of Carlsbad, California has determined that pursuant to
the provisions in the Carlsbad Municipal Code, the Planning Commission did, on Dec. 16, 2020, hold a
duly noticed public hearing as prescribed by law to consider Coastal Development Permit No. CDP
2020-0026 and Variance No. V 2020-0004, as referenced in Planning Commission Resolution No. 7394;
and the Planning Commission adopted Resolution No. 7394 recommending to the City Council that
they be denied; and
WHEREAS, the City Council of the City of Carlsbad held a duly noticed public hearing to consider
said Coastal Development Permit and Variance; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, the City Council considered all factors relating to the Coastal
Development Permit and Variance.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the recommendation of the Planning Commission for the denial of Coastal
Development Permit No. CDP 2020-0026 and Variance No. V 2020-0004 are adopted
and approved, and that the findings and conditions of the Planning Commission
contained in Planning Commission Resolution No. 7394 on file with the City Clerk and
incorporated herein by reference, are the findings and conditions of the City Council.
3.This action is final the date this resolution is adopted by the City Council. The Provisions
of Chapter 1.16 of the Carlsbad Municipal Code, "Time Limits for Judicial Review" shall apply:
March 16, 2021 Item #4 Page 7 of 193
"NOTICE"
The time within which judicial review of this decision must be sought is governed by Code of Civil
Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad
Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the
appropriate court not later than the ninetieth day following the date on which this decision becomes
final; however, if within ten days after the decision becomes final a request for the record is filed with
a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time
within which such petition may be filed in court is extended to not later than the thirtieth day following
the date on which the record is either personally delivered or mailed to the party, or his attorney of
record, if he has one. A written request for the preparation of the record of the proceedings shall be
filed with the City Clerk, City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 16th day of March, 2021, by the following vote, to wit:
AYES: Hall, Blackburn, Acosta, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
MATT HALL, Mayor
,AV0,5/51/17-1 170. (fr-1--, /1)C
BARBARA ENGLESON, City Clerk
(SEAL)
March 16, 2021 Item #4 Page 8 of 193
PLANNING COMMISSION RESOLUTION NO. 7394
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CARLSBAD, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL
DENY A COASTAL DEVELOPMENT PERMIT AND VARIANCE TO ALLOW AN
UN PERMITTED RETAINING WALL SYSTEM THAT EXCEEDS STANDARDS ON
A MANUFACTURED UPHILL PERIMETER SLOPE WITH A GRADIENT
GREATER THAN 40 PERCENT AND AN ELEVATION DIFFERENTIAL OF
GREATER THAN FIFTEEN FEET LOCATED AT 939 BEGONIA COURT ON
PROPERTY LOCATED AT 939 BEGONIA COURT WITHIN THE MELLO II
SEGMENT OF THE CITY'S LOCAL COASTAL PROGRAM AND LOCAL
FACILITIES MANAGEMENT ZONE 4.
CASE NAME: BEGONIA COURT RETAINING WALL
CASE NO: CDP 2020-0026/V 2020-0004
WHEREAS, Rene Lichtman, "Developer/Applicant," has filed a verified application with the City of
Carlsbad regarding property owned by Valerie Lichtman, "Owner," described as
Lot 138 of Carlsbad Tract No. 73-79, Spinnaker Hill Unit #3, in the City of Carlsbad, County of San
Diego, State of California, according to map thereof no. 8453, filed in the Office of the County
Recorder of San Diego County on December 29, 1976
("the Property"}; and
WHEREAS, said verified application co,nstitutes a request for a Coastal Development Permit and
Variance as shown on Exhibit(s} "A" dated December 16, 2020, attached hereto and on file in the Carlsbad
Planning Division, CDP 2020-0026/V 2020-0004 -BEGONIA COURT RETAINING WALL, as provided in
Chapters 21.201 and 21.50 of the Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did, on December 16, 2020, hold a duly noticed public
hearing as prescribed by law to consider said request;
WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Commission considered all factors relating to the Coastal
Development Permit and Variance.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission of the City of Carlsbad,
as follows:
A} That the above recitations are true and correct.
B)
Findings:
That based on the evidence presented at the public hearing, the Commission
RECOMMENDS DENIAL of CDP 2020-0026/V 2020-0004 -BEGONIA COURT RETAINING
WALL, based on the following findings and subject to the following conditions:
Coastal Development Permit (CDP 2020-0026)
1. The proposed development is not in conformance with the Certified Local Coastal Program and
all applicable policies in that the site is known for geologic instability due to the unpermitted
grading and construction of an unpermitted retaining wall system. A geotechnical evaluation
provided by the applicant and prepared by Advanced Geotechnical Solutions, Inc., dated October
9, 2019 (see Attachment 8) confirms the slope stability has been compromised and does not meet
minimum safety standards for static or seismic conditions. The geotechnical evaluation offered
conceptual options to mitigate the structure; however, the applicant's engineer did not provide
adequate technical information to determine if the subject slope area would be stable or if the
impacts would be mitigatable for at least seventy-five years or for the life of the structure. The
city requested specific structural details related to the retaining walls and retrofitting of the walls.
The applicant refused to provide the information and the applicant's engineer stated that the
specifics regarding the retrofit would be on a design-build basis (see Attachment 9). A design-
build basis implies that the necessary information to demonstrate the feasibility of the retrofit
would only be provided after the coastal development permit and variance are approved, but the
city does not have the information to rely upon in order to approve the project. Therefore, staff
does not have the necessary information to make the determination that the slope would be
stable, or if the impacts would be mitigatable for at least seventy-five years or for the life of the
structure. In addition, the geotechnical evaluation did not address compliance with the
requirements of the Coastal Zone or Zoning Ordinance. Therefore, the project is not consistent
with the intent and purpose of the Certified Local. Coastal Program in that it does not preserve or
protect steep manufactured slopes, nor does the project ensure structural stability of the slope
from erosion, geological instability or destruction of the site or surroundi,:ig area . The project does
not meet this finding.
·-2. The project is not consistent with the provisions of the Coastal Resource Protection Overlay Zone
(Chapter 21.203 of the Zoning Ordinance) because the geotechnical evaluation did not provide
adequate information for staff to confirm that the project will avoid increased urban runoff,
pollutants and soil erosion and there is a steep slope (equal to or greater than 25 percent gradient)
of approximately 55 percent located-on the subject property. The project does not meet this .
finding based on the analysis in finding number 1 above.
a. The applicant provided a geotechnical evaluation that was prepared ~y a licensed engineer
who inspected the unpermitted retaining wall system and determined the wall system is
structurally faulty because the fill has not been compacted to a minimum percentage that is
safe. In addition, the evaluation finds that the slope is not safe for long term stability for static
conditions or seismic conditions. The geotechnical evaluation included three options to
remediate the wall system to make it structurally sound which are: A) remove the existing
walls and undocumented fill and replace it with a new five-foot wall near the toe of the slope
with an ascending fill slope located above the wall, and rebuild a new wall system constructed
near the top of the fill slope; B) remove the walls and undocumented fill and restore the
existing slope; or C) leave the existing walls in place with considerable reinforcement effort,
which may require encroachment onto the adjacent properties that will require authorization
PC RESO NO. 7394 -2-.
from the property owners. Although the geotechnical evaluation offered conceptual options
to mitigate the structure, the applicant's engineer did not provide adequate technical
information to determine if the subject slope area would be stable or if the impacts would be
mitigatable for at least seventy-five years or for the life of the structure as described in more
detail in Section lll(C)(l)(a) of the staff report above.
b. The grading of the manufactured uphill perimeter slope is not essential for the development
intent and design of a single-family residential property. If it were essential, it would have
been done with the original grading of the overall subdivision development. Grading is only
necessary to retain the unpermitted retaining wall system, but the walls are not a permitted
structure-on a manufactured uphill perimeter slope in accordance with CMC Chapter 21.95
-Hillside Development Regulations. In addition, grading on a manufactured uphill perimeter
slope beyond the six-foot limitation is only allowed in the Coastal Zone when it is necessary
to preserve onsite natural habitat as required by the city's Habitat Management Plan. The
project site is in the Coastal Zone but there is no natural habitat onsite that is required to be
preserved; therefore, the grading of the slope is not essential to the development. The
project does not meet this finding.
Variance {V 2020-0004)
3. The applicant's justification does not speak to special circumstances related to the subject
property, or loss of privileges enjoyed by other properties, but instead speaks to circumstances
the applicant created through the illegal grading and construction of the retaining wall system.
There are no special circumstances associated with the property, including size, shape,
topography, location or surroundings, such that the strict application of the zoning ordinance
would deprive the property of privileges enjoyed by the other homes in the vicinity and in the
R-1 Residential zone. The property is of average size (17,146 sq. ft.) in the neighborhood and is
a typical pie-shaped lot that is found on a cul-de-sac street. The other lots in the vicinity range
in size from about 12,000 to about 19,000 square feet in size. The 55 percent manufactured
uphill perimeter slope is characteristic of the adjacent properties and other properties in the
vicinity. The strict application of the zoning code does not deprive the property of privileges
enjoyed by other property owners because retaining walls that exceed the hillside development
standards on a manufactured uphill perimeter slope are unpermitted for all residential
properties. The retaining wall system is decorative and does not constitute relief from unique
difficulties or hardships associated with the property in question.
4. The variance would constitute a grant of special privileges that is inconsistent with the
limitations upon other properties in the vicinity and zone. All properties in the vicinity and the
R-1 Residential zoning designation in the Coastal Zone are subject to the same Hillside
Development Ordinance regulations that are in effect, which prohibit retaining walls from being
constructed beyond what is allowed on a manufactured uphill perimeter slope. No other
properties in the vicinity have similar, permitted retaining walls on the manufactured uphill
perimeter slope. To approve the subject variance would be a grant of special privileges to this
property that other properties in the vicinity do not enjoy.
5. The granting of this variance would authorize a use or activity which is not otherwise expressly
authorized by the zone regulation governing the subject property. The fact that the retaining
wall system is existing because it has been constructed without city approval is not appropriate
justification to approve the variance. As designed, the unpermitted retaining wall system is
PC RESO NO. 7394 -3-. --· . . -
prohibited per CMC Chapter 21.95 -Hillside Development Regulations which governs
· development on manufactured uphill perimeter slopes. CMC Chapter 21.95 allows for
modifications to development on slopes; however, modifications are prohibited in the Coastal
Zone unless it is necessary to preserve natural habitat as required by the city's Habitat
Management Plan. The subject property is in the Coastal Zone, but there is no native habitat on
site and the project is not necessary to preserve natural habitat Therefore, granting the variance
would authorize an activity that is expressly not authorized within the applicable zoning
regulations.
6. The granting of this variance is not consistent with the general purpose and intent of the
General Plan. The subject property is designated Residential (R -4) General Plan Land Use
designation and although walls are a typical component of residentially designated areas, the
subject retaining wall system is not consistent with the development of single-family lots with
a manufactured uphill perimeter slope within the Coastal Zone. The subject retaining wall
system also does not promote the Hillside Development Ordinance intent to enhance the
aesthetic qualities of manufactured slopes and is not consistent with the Hillside Development
and Design Guidelines acknowledgment that manufactured slopes of greater than 40% gradient
and greater than 15 feet in height are regarded as important aesthetic, visual resources because
they provide visually open, vertical separations between developed pads in hilly areas and
between developed pads and roadways. As a result, the project does not preserve the existing
neighborhood atmosphere and identity of the existing residential area.
7. The granting of this variance would not be consistent with the general purpose and intent of
the certified local coastal program and does reduce or adversely affect the requirements for
protection of coastal resources. One of the purposes of the certified local coastal program is to
preserve and protect natural and manufactured slopes in the coastal resource protection
overlay zone area and to ensure stability and structural integrity of the slopes from erosion,
geologic instability, or destruction of the site. The unpermitted grading that has occurred to
construct the unpermitted and unengineered retaining wall system has compromised the
stability of the slope. To retain the wall system will require considerable reinforcement and the
structural integrity of reinforcing the walls has not been determined since the applicant has
refused to provide such information at this time as described in detail previously in the staff
report. Therefore, the feasibility of retaining the wall system and stabilizing the slope in
accordance with the requirements for protection of the local coastal resources is unknown.
Condition:
1. Within 60 days from the date of the City Council action, or as otherwise specified in the Code
Compliance Agreement and Release for Code Enforcement Case No. CC 2018-0902, the property
owner shall apply for the necessary permits such as but not limited to cl grading permit and coastal
development permit to remove the unpermitted retaining wall system and restore the slope to
comply with CMC Section 21.95.140(C)(1)(a)(i).
PC RESO NO. 7394 -4-
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City
of Carlsbad, California, held on December 16, 2020, by the following vote, to wit:
AVES: Chair Anderson, Commissioners Geidner, Lafferty, Luna, Meenes and Stine
NOES:
ABSENT:
ABSTAIN : Commissioner Merz
VEL YN ANDERSON, Chair
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU .
City Planner
PC RESO NO. 7394